2019
CONTRACT TERMS AND CONDITIONS
All goods and services supplied by Elite Mechanical & Engineering Services Ltd (“we”, ”our” or “us”) to the Customer (“you” or “your”) are supplied on the following terms unless otherwise agreed in writing between you and us.
Contract: These terms will be or are deemed to be incorporated into, and form part of, each contract (“contract”) between us and you for the supply of goods and/or services, however the contract is created, provided that “goods” and/or “services” mean the goods and/or services described in any one or more of the relevant quotation, order form, invoice, or equivalent document prepared by us and relating to those good and/or services (with each such document deemed to be incorporated into, and form part of, the contract).
Variations: If you and we agree to vary the work to be done we reserve the right to vary our charges and you agree to pay the amount agreed between you and us for such work. If our charges have not been agreed then you agree to pay our normal charges for such work in accordance with our relevant standard charging policies. These terms will be deemed to be varied in the event that we are required to undertake additional or different work as a result of any latent ground conditions or existing underground services.
Payment: Payment of our invoices is due on the 20th of the month following the date of our invoice unless otherwise agreed in writing.
If you do not pay all monies due to us on or before the due date, in addition to our other rights, we shall have the right to charge default interest on any overdue amount from its due date until it and the interest is paid in full. The default interest will be equal to 1% per month, calculated daily. Payments received will be applied first in payment of the late payment fee and secondly in payment of other monies due to us.
Any costs incurred in collecting money owing to us by you, including any debt collector’s fees, legal and court costs are payable by you on demand.
If your account remains unpaid after its due date and you have not communicated to us that the amount unpaid is subject to a genuine dispute, we will send your unpaid debt to a debt collection agency for recovery.
Risk and Property: All risk in and for goods:
supplied and installed by us, shall pass to you on installation; and
supplied but not requiring installation by us, shall pass to you on delivery.
Property in, ownership of and title to the goods shall not pass to you until you pay to us all monies for the goods and/or services under the contract. Receipt by us of any cheque or other bill of exchange or promissory note shall be deemed not to have been paid until it has been cleared.
Until we have been paid and ownership of the goods passes to you:
you shall hold the goods in trust for us as the beneficial owner and to store the goods separately from your own and other goods, and clearly identify them as belonging to us.
if you use or sell the goods before ownership of the goods passes to you, the proceeds of such use or sale shall be received and held by you (in whatever form) in trust for us and shall not be intermingled with any other monies or paid into any overdrawn bank account and shall at all times be kept identifiable as monies held in trust for us.
you irrevocably authorise us or our employees or agents without being required to give any notice, to enter on or into any premises where any of the goods are or are reasonably believed to be, to inspect and/or repossess all or any of the goods and you shall indemnify us in respect of any costs, claims or liability incurred by us in doing so.
Default: You must advise us immediately if any one or more of the following events (each an “event of default”) occurs:
you fail to comply with any contract or other agreement between you and us (or any person related to us); or
you are subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, or which generally precedes such an event; or
an event occurs or information becomes known to you which, in your opinion, might materially affect your creditworthiness, the value of the goods, or your ability or willingness to comply with your obligations under the contract or any other agreement between you and us.
Following an event of default, without prejudice to any other rights, powers or remedies we may have:
we may suspend or terminate the supply of goods and/or services to you and any of our other obligations under the contract or any other agreement between you and us;
all amounts owing to us under the contract and any other agreement between you and us shall immediately become due and payable, notwithstanding that the due date for payment has not arisen;
we may enforce any security interest granted to us by you;
we may (without your consent) appoint a receiver in respect of any goods and any receiver is authorised, in respect of those goods, to do anything referred to in these terms and otherwise to exercise all rights and powers conferred on a receiver by law.
In addition, you agree that at any time following an event of default, or at any time the goods are at risk, we may:
take possession of the goods; and/or
sell or dispose of the goods,
in each case in such manner and generally on such terms and conditions as we think fit and otherwise do anything you could do in relation to the goods.
You agree to promptly do all things (including the procuring of consents) necessary to enable us to exercise our rights, powers or remedies following the occurrence of an event of default.
Delivery: Any time stated for delivering goods or performing services is an estimate only. We are not liable for any delay in delivering goods or performing services and you will reimburse us for any additional costs incurred by us as a result of any delay that is beyond our control.
Warranty: We warrant that any goods supplied and manufactured by us is free from defects in materials and workmanship for a period of _12___ months from date of delivery, provided the goods are subject to normal use and service for the particular type of goods supplied. Any modification to the goods shall invalidate this warranty. We will not be liable for nay damage or defect arising from misuse or neglect or any damage by accident which is beyond our control.
Limitation of Liability: If you are a Consumer who acquires or holds yourself out as acquiring the goods and services for the purposes of business, the provisions of the Consumer Guarantees Act 1993 shall not apply. We (and our employees and agents) will not be liable for any claim by you or any other person for any loss other than any direct loss arising from a breach by us of the contract, provided that:
Any liability of ours arising under the contract shall in all circumstances be limited to and shall not exceed the purchase price of the goods and/or services in relation to which the liability has arisen; and
Such a breach was not caused by an event outside our control.
For the avoidance of doubt, to the extent permitted by law, we (and our employees and agents) will not be liable for any claim by you or any other person:
for consequential or indirect loss, damage or expense of any kind (including economic loss, loss of profits or any similar claim);
for deterioration of goods due to exposure to the elements after delivery;
relating to or arising from any terms, conditions, warranties, descriptions or representations except those expressly set out in writing in the contract;
relating to or arising from the exercise by us of our rights, powers or remedies under the contract, including following the occurrence of an event of default,
and you agree to indemnify us (and our employees and agents) for any loss we suffer or incur as a result of any such claim.
Assignment: We may, but you shall not, assign the rights and obligations under any contract between us.
General: Where there is more than one individual or company acquiring goods and services under a contract with us they shall be liable jointly and each of them severally liable.
Governing Law: This contract shall be governed by the laws of New Zealand in force from time to time and the parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.